Professional Documents
Culture Documents
V.
CHRIS FODGE,
Defendant.
MCNULTY, U.S.D.J.:
This matter comes before the Court on the unopposed motion of Plaintiff
Malibu Media, LLC (Malibu Media) for default judgment against Defendant
Chris Fodge. For the reasons expressed below, I deny the motion for default
judgment.
BACKGROUND
The plaintiff, Malibu Media, is a California limited liability company that
operates a website containing movies for which Malibu Media owns the
copyrights. (Amended Complaint, Dkt. No. 8 (Compi.)
Chris Fodge, is an individual. (Id.
3, 8) The defendant,
9)
10) To
distribute a large file, BitTorrent breaks a file into many small pieces, referred
to as bits. (Id.
and then once the recipient receives all of the bits of a file, the BitTorrent
software will reassemble the bits so that the file can be opened and used. (Id.
13) Each bit is assigned a unique cryptographic hash value that identifies the
bit and ensures that it is properly routed. (Id.
given a hash value which acts as an identifier and is used by the BitTorrent
software to determine when the file is complete and accurate. (Id. j 15, 16)
Malibu Media engaged an investigator, IPP International UG, which
established a connection with the internet protocol (IP) address
74.105.43.211, and downloaded one or more bits of digital media files. (Id.
17, 18; Ex. A) After downloading full copies of the medial files from BitTorrent,
the investigator used the hash values to identify the files as 23 separate
copyrighted works owned by Malibu Media. (Id. j 19-2 1) The investigator
connected with the IP address a number of times between April 23, 2014, and
September 25, 2014. (Id.
22; Ex. A)
naming Chris Fodge as the defendant. (Dkt. No. 9) A summons was issued and
Fodge was served on July 9, 2015. (Dkt. No. 12) On August 11, 2015, Malibu
Media requested the Clerk enter default against Fodge, which was entered
August 12, 2015. (Dkt. No. 14) Malibu Media filed its motion for default
judgment on October 30, 2015. (Dkt. No. 16)
After the prerequisites have been satisfied, a court must evaluate the
following three factors: (1) whether the party subject to default has a
meritorious defense, (2) the prejudice suffered by the party seeking default, and
(3) the culpability of the party subject to default. Doug Brady, Inc. v. N.i Bldg.
Laborers Statewide Funds, 250 F.R.D. 171, 177 (D.N.J. 2008) (citing Emcasco
Ins. Co. v. Sambrick, 834 F.2d 71, 74 (3d Cir. 1987)). Those factors, considered
in light of the record of this case, weigh against entry of a default judgment.
a. Factor 1
My independent review of the record suggests that Fodge could mount a
meritorious defense. The Amended Complaint asserts a cause of action for
direct copyright infringement, in violation of 17 U.S.C.
Malibu Media has identified 23 works that are the subject of this action
and that it owns the copyrights for these works. (Compi. Ex. B) However, with
respect to seven of the works, the date the investigator connected with the
Defendants IP address preceded the copyright registration date, and thus on
the face of the Amended Complaint and without the benefit of discovery,
Malibu Media cannot at this juncture establish a valid copyright at the time the
defendant allegedly downloaded seven of the twenty-three works. With respect
to the other sixteen works, Malibu Media has pled that it owns a valid
copyright.
As to the second element, the Defendants connection to the alleged
infringement is based solely on an IP address. The IP address here, as the
Plaintiff concedes, is actually held by the Defendants spouse. (Compl. 25) In
the Amended Complaint, Malibu Media is not certain that the infringer is
Defendant, but rather pleads discovery will likely show that Defendant is the
infringer. (Id. 27) In fact, the infringer could be another person altogether,
such as a family member or, as Malibu Media itself concedes, sometimes, the
infringer is another person who the subscriber has authorized to use the
subscribers Internet. (Id. 28) Or, it could be that the infringer is someone
using the subscribers Internet via a wireless router that is not password
protected. While it is possible that the infringer is Defendant, Malibu Media has
not proved that Fodge actually caused or is responsible for the alleged
infringement. Defendant can state a meritorious defense to the claims
presented here. See Malibu Media, LLC v. Wailer, 2016 WL 184422, at *3
(D.N.J. Jan. 15, 2016) (collecting cases recognizing valid defense where
infringement claim is premised solely on IP address). Accordingly, this factor
weighs against entry of default judgment.
b. Factors 2 and 3
The second and third factors weigh in favor of default. Fodge was
properly served on July 9, 2015 but has failed to appear and defend himself.
Malibu Media has been prejudiced by this dereliction because it has been
prevented from prosecuting [its] case, engaging in discovery, and seeking relief
5
in the normal fashion. See Teamsters Pension Fund of Philadelphia & Vicinity v.
Am. Helper, Inc., 2011 WL 4729023, at *4 (D.N.J. Oct. 5, 2011) (finding that a
defendants failure to answer prejudices the plaintiff); see also Gowan v. Contl
Airlines, Inc., 2012 WL 2838924, at *2 (D.N.J. Jul. 9, 2012) ([Plaintiffs] will
suffer prejudice if the Court does not enter default judgment as Plaintiff[s]
[have] no other means of seeking damages for the harm caused by
Defendant.). Absent any evidence to the contrary, the Defendants failure to
answer evinces the Defendants culpability in [the] default. Teamsters Pension
Fund of Philadelphia & Vicinity, 2011 WL 4729023 at *4 In this case, there is
nothing before the Court to show that the Defendant[s] failure to file an answer
was not willfully negligent. Id. (citing Prudential Ins. Co. of America v. Taylor,
2009 WL 536043, at *1 (D.N.J. Feb. 27, 2009) (finding that when there is no
evidence that the defendants failure to answer the complaint was due to
something other than its own willful negligence, the defendants conduct is
culpable and default judgment is warranted).
Weighing the factors, I find that Malibu Media has failed to sufficiently
allege copyright infringement against Fodge as he has meritorious defenses. I
will, therefore, deny the motion for default judgment against him.
CONCLUSION
For the foregoing reasons, the motion for default judgment is denied. An
appropriate order and judgment will issue.
/--